Citation Nr: 1302713
Decision Date: 01/24/13 Archive Date: 01/31/13
DOCKET NO. 07-06 083 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for degenerative changes, left knee.
2. Entitlement to service connection for degenerative changes, left shoulder.
3. Entitlement to service connection for degenerative disc disease, L5-S1, T10-12 with diffuse spurring.
4. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to degenerative changes, left shoulder.
5. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities.
6. Whether new and material evidence has been received to reopen a previously denied claim for service connection for chronic acquired psychiatric disorder, to include anxiety and depression, to include as secondary to umbilical hernia.
7. Entitlement to service connection for sciatica of the left lower extremity, to include as secondary to low back disability.
8. Entitlement to service connection for sciatica of the right lower extremity, to include as secondary to low back disability.
9. Entitlement to service connection for hepatitis C.
10. Entitlement to a compensable evaluation for umbilical hernia.
11. Entitlement to a compensable evaluation for flexion contracture with degenerative changes, left little finger.
12. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: David L. Huffman, Attorney at Law
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Kim, Counsel
INTRODUCTION
The Veteran served on active duty from June 1973 to June 1976, from August 1986 to August 1987, and from January to March 1994. He also had over 26 years of service with the Army National Guard with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).
These matters came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran filed a timely appeal of the RO's determinations to the Board.
In February 2008, the Veteran testified during a hearing before a Decision Review Officer (DRO). A transcript of that hearing has been associated with the Veteran's claims file.
In March 2009, the Veteran testified before the undersigned Acting Veterans Law Judge at the RO. A transcript of that proceeding has been associated with the Veteran's claims file.
In a September 2009 decision, the Board denied initial compensable evaluations for an umbilical hernia and flexion contracture with degenerative changes, left little finger (left little finger disability); denied service connection for bilateral carpal tunnel syndrome, headaches, bilateral varicose veins, a cervical spine disability, liver disease, loss of use of a creative organ with atrophy of the left testicle, depression, and residuals of right hand injury; and remanded the issues of service connection for degenerative changes, left knee (left knee disability), degenerative changes, left shoulder, and degenerative disc disease, L5-S1, T10-12 with diffuse spurring (low back disability), and entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities.
In a November 2009 rating decision, the RO denied service connection for peripheral neuropathy of the left upper extremity, to include as secondary to the degenerative changes of the left shoulder. The Veteran filed a timely appeal of that determination.
In November 2010 correspondence, the Veteran's representative cited the supplemental statement of the case (SSOC) issued earlier that month on the remanded issues and requested a hearing before a DRO, if one had not been previously provided. As noted above, the Veteran has already presented testimony before a DRO on those issues, and the RO advised the Veteran of this circumstance in a January 2011 letter.
The Veteran was scheduled for another videoconference Board hearing in October 2012. However, he failed to report to the hearing. Thus, his request for a Board hearing is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012).
In a July 2012 rating decision, the RO determined that new and material evidence had not been submitted to reopen a previously denied claim for service connection for a chronic acquired psychiatric disorder, to include anxiety and depression, to include as secondary to the service-connected umbilical hernia; denied service connection for sciatica of the left lower extremity, to include as secondary to a low back disability, sciatica of the right lower extremity, to include as secondary to a low back disability, and hepatitis C; denied compensable evaluations for umbilical hernia and left little finger disability; and denied a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veterans Appeals Control and Locator System (VACOLS) shows that the Veteran filed a notice of disagreement (NOD) to each of those denials in August 2012.
The Board notes that additional evidence was added to the claims file since the issuance of the recent November 2010 SSOC and prior to transfer of the records to the Board. The Veteran's Social Security Administration (SSA) records were received in March 2012 and a VA examination report was obtained in May 2012. The relevant regulation, 38 C.F.R. § 19.37 (2012), states that an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the statement of the case (SOC) or a prior SSOC or the additional evidence is not relevant to the issue, or issues, on appeal. Upon review of the evidence, the Board finds that the SSA records are either duplicative or cumulative of evidence of record previously associated with the claims file or not relevant to the issues being adjudicated in this decision, and the VA examination report is not relevant to the issues being adjudicated in this decision. Thus, remand is not warranted. In any event, for the reasons discussed above, the Board finds that any error in not returning the claims to the RO for readjudication is harmless and results in no prejudice to the Veteran. See 38 C.F.R. § 20.1102 (2012).
In this decision, the Board denies service connection for a left knee disability, degenerative changes of the left shoulder, a low back disability, and peripheral neuropathy of the left upper extremity. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO.
FINDINGS OF FACT
1. A left knee disability was not incurred in or aggravated by active service.
2. Degenerative changes of the left shoulder were not incurred in or aggravated by active service.
3. A low back disability was not incurred in or aggravated by active service.
4. Peripheral neuropathy of the left upper extremity was not incurred in or aggravated by active service and is not proximately due to, the result of, or aggravated by a service-connected disability.
CONCLUSIONS OF LAW
1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012).
2. The criteria for service connection for degenerative changes of the left shoulder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012).
3. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012).
4. The criteria for service connection for peripheral neuropathy of the left upper extremity, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act (VCAA)
Before addressing the merits of the issues of entitlement to service connection for a left knee disability, degenerative changes of the left shoulder, a low back disability, and peripheral neuropathy of the left upper extremity, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).
Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id.
Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been than satisfied.
With respect to the claims for service connection for a left knee disability, degenerative changes of the left shoulder, and a low back disability, the Veteran was notified via letter dated in October 2004 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter predated the initial adjudication by the AOJ/RO in July 2005. The Board acknowledges that he was not notified of how VA determines disability ratings and effective dates until April 2006. However, the claims were thereafter readjudicated in November 2006. Accordingly, any timing deficiency has been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).
With respect to the claim for service connection for peripheral neuropathy of the left upper extremity, the Veteran was notified via letter dated in April 2009 of the criteria for establishing direct and secondary service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2009.
Next, VA has a duty to assist the veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In this case, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims.
VA provided the Veteran with an examination in May 2005 to determine the nature and etiology of his disabilities. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the May 2005 VA examination report did not contain the needed opinions, the Board requested an addendum, which was obtained in April 2010. The Board finds the examination report and addendum to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claims. A brief but relevant and important opinion was provided. The Board finds the opinion to be adequate, as it was predicated on a full reading of the service treatment records, and private and VA medical records in the claims file as well as the Veteran's own statements.
Although an examination or opinion was not obtained in connection with the claim for service connection for peripheral neuropathy of the left upper extremity, the Board finds that VA was not under an obligation to provide one, as such is not necessary to make a decision on the claim, for the reasons discussed below.
In determining whether the duty to assist requires that a medical examination be provided or a medical opinion be obtained, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
In this case, the evidence shows that the Veteran's symptoms of peripheral neuropathy are associated with either a cervical spine disability or carpal tunnel syndrome, neither of which is service-connected. Thus, there is no reasonable possibility that an examination or opinion would aid in substantiating the claim.
In the remand portion of the September 2009 decision, the Board requested that the RO obtain any outstanding VA medical records and an addendum from the VA examiner who prepared the May 2005 VA examination report. The RO obtained all available VA medical records and, as indicated above, obtained the addendum, which is substantially responsive to the Board's request. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be also granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (2012).
The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012); (24); 38 C.F.R. § 3.6(a) (2012).
Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis and/or an organic disease of the nervous system becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012).
The presumption provisions contained in 38 C.F.R. §§ 3.307 and 3.309 apply only to periods of active duty, not ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995).
Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In this case, the Veteran contends that he has disabilities of the left knee, left shoulder, and low back that were incurred in or aggravated by active duty or a period of ACDUTRA or INACDUTRA. He also contends that he has peripheral neuropathy of the left upper extremity as secondary to the left shoulder disability.
Left Knee Disability
The Veteran asserts that he injured the left knee in June 1991 during annual training and that that injury contributed to the subsequent injury while working full-time for the National Guard. The Board observes that annual training is ACDUTRA.
The Veteran's service treatment records from active duty from June 1973 to June 1976 do not reflect any complaints, findings, or diagnoses of a left knee disability. Records from National Guard service show that in June 1991 he complained of a knot in the back of the left knee but examination showed full range of motion and no knot. There are no further complaints of left knee problems until September 1999 when private medical records show that he fell and injured the knee while carrying boxes down some steps. He complained of the knee moving in and out and was diagnosed with a sprain. X-rays showed significant osteoarthritic changes. In July 2000, he complained of medial knee pain for the past two weeks, was found to have a large knot on the medial side, and was diagnosed with a painful cyst of the left knee. An August 2000 record shows complaints of left knee pain for the past several weeks since feeling a snap while walking on level ground, and that an MRI revealed a torn anterior cruciate ligament and a torn meniscus. He underwent arthroscopic surgery of the left knee. A December 2000 letter from the Office of Workers' Compensation Programs shows that the Veteran filed a claim for the left knee injury that occurred in September 1999 while working for the National Guard.
Given the above, although the Veteran sustained an injury to the left knee during a period of ACDUTRA, he did not develop a chronic left knee disorder as there are no further complaints for over eight years thereafter. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The first sign of left knee problems since the above injury appears in September 1999 and they were due to a recent injury. Indeed, he filed a Workers' Compensation claim for disability resulting from that injury. Thus, the current left knee disability appears to be attributable to an intercurrent cause. 38 C.F.R. § 3.303(b).
A May 2005 VA examination report reflects a history of injuring the left knee in 2000. The Veteran stated that he had been told that his knee had been weakened by a previous injury and recalled injuring the knee during service in the 1990s. After examining the Veteran, the examiner provided a diagnosis of degenerative changes in the left knee.
In a May 2009 opinion, the Veteran's private treating physician stated that, after reviewing the Veteran's service treatment record from June 1991 and her own medical records from the time of the surgery in August 2000, which indicated that the left knee had been previously injured, causing additional weakness and instability, it was her opinion that it is as least as likely as not that the Veteran's left knee injury while on ACDUTRA was a substantial factor in contributing to the weakness and instability of the knee that led to subsequent knee injuries.
As the record indicated that the Veteran's left knee disability may be related to an in-service injury, the Board requested a VA medical opinion from the above VA examiner.
In an April 2010 opinion, a VA examiner noted a review of the Veteran's claims file, including the June 1991 service treatment record and September 1999, July 2000, and August 2000 private medical records. The examiner stated that the Veteran's degenerative joint disease of the left knee did not have its onset during active duty or within one year thereafter. The examiner noted the one in-service episode of knee strain in June 1991 when the Veteran was evaluated for complaints of a knot in the knee, which was not found, and observed that he was returned to full duty and had negative subsequent physical examinations. The examiner noted the private physician's May 2009 opinion but expressed her disagreement, noting that there is insufficient evidence to support the opinion. The examiner stated that the Veteran was able to continue to serve in the National Guard after the 1991 knee strain and subsequent physical examinations show no complaints of left knee problems. The examiner stated that, based on her clinical experience and review of the claims file, the one-time complaint of left knee pain in service could not have contributed to the current degenerative changes. The examiner reiterated that the Veteran went on to serve years in the National Guard. The examiner noted that the Veteran had surgery on the left knee but that was not related to active duty. The examiner concluded that there is insufficient evidence to show a clear nexus.
Given the above, the Board finds that the weight of the probative evidence shows that the Veteran's left knee disability is not related to any incident of active service.
The Board notes the favorable opinion from the private physician. However, there is no indication that she considered the September 1999 post-service injury. Indeed, the September 1999 medical records show a different treating physician's name. The physician's opinion is based on her observation that her own medical records from the time of the surgery in August 2000 indicated that the left knee had been previously injured. However, without knowledge of the September 1999 injury, her conclusion that the previous injury stemmed from the in-service injury is flawed. Thus, her opinion is of limited probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).
On the contrary, the opinion of VA's examiner is based on a review of the Veteran's claims file, and thus the Veteran's complete medical history, including the 1999 injury and the 2000 injury that lead to the surgery. In providing her opinion, the examiner also discounted the private physician's opinion, citing to evidence in the claims file. Thus, her opinion is of great probative value. See Hayes, 5 Vet. App. at 69-70. Therefore, the Board finds that the Veteran's left knee disability is not related to the 1991 in-service injury or any other incident of service.
In conclusion, the Board finds that a left knee disability was not incurred in or aggravated by active service.
Degenerative Changes, Left Shoulder
The Veteran asserts that he injured the left shoulder in Panama during active duty.
Initially, the Board notes that the Veteran has also filed a claim for service connection for neurologic manifestations of the left shoulder, claimed as peripheral neuropathy of the left upper extremity, which will be addressed below. As such, only the orthopedic manifestations of the left shoulder, diagnosed as degenerative changes or degenerative joint disease, will be discussed here.
The Veteran's service treatment records from active duty from June 1973 to June 1976 do not reflect any complaints, findings, or diagnoses of a left shoulder disability. Records from National Guard service show that in March 1994 while on active duty in Panama he complained of intermittent numbness in the left shoulder for the past three weeks since banging the shoulder on a truck door, was found to have full range of motion of the shoulder with no pain, and was diagnosed with a possible impingement. There are no further complaints of left shoulder problems during the rest of that period of active duty or his National Guard service.
However, private medical records from prior to that time in February 1992 show that the Veteran complained of left shoulder pain since January 1992 and was diagnosed with probable arthritis, later confirmed by x-rays. In March 1992, he complained of occasional numbness of the left forearm and twitching of the muscles in the left upper arm, was diagnosed with rule out cervical radiculopathy, and was referred for nerve conduction studies. A May 1992 report of nerve conduction studies shows diagnoses of left carpal tunnel syndrome and left C5-6 radiculopathy.
Given the above, although the Veteran sustained an injury to the left shoulder during a period of active duty, there is no indication that the injury aggravated his preexisting arthritis as the in-service complaints were referable only to neurological symptoms as opposed to orthopedic symptoms. Indeed, there is no indication of an increase in disability during service as examination at that time showed no pain and full range of motion of the left shoulder. Such findings support a finding that there was no aggravation of the underlying orthopedic disability as a result of the in-service injury. Again, there are no further complaints for many years thereafter. In fact, there is no evidence of left shoulder problems since the above injury until the Veteran filed his claim for benefits in October 2004. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330.
A May 2005 VA examination report reflects a history of injuring the left shoulder while in Panama from 1994 to 1995. The Veteran stated that he had been told that he had probably injured a nerve. After examining the Veteran, the examiner provided a diagnosis of degenerative changes in the left shoulder.
As the record indicated that the Veteran sustained an injury to the left shoulder in service, the Board requested a VA medical opinion from the above VA examiner.
In an April 2010 opinion, a VA examiner noted a review of the Veteran's claims file, including the 1992 private medical records and March 1994 service treatment record. The examiner stated that the Veteran's degenerative joint disease of the left shoulder did not have its onset during active duty or within one year thereafter. The examiner noted the one in-service episode of numbness in the left shoulder and observed that the Veteran was returned to full duty and had negative subsequent physical examinations. The examiner indicated that the Veteran was able to continue to serve in the National Guard after the 1994 episode and subsequent physical examinations show no complaints of left shoulder problems. The examiner stated that, based on her clinical experience and review of the claims file, the one-time complaint of left shoulder problems in service could not have contributed to the current degenerative changes. The examiner reiterated that the Veteran went on to serve years in the National Guard. The examiner concluded that there is insufficient evidence to show a clear nexus.
Given the above, the Board finds that the Veteran's degenerative joint disease of the left shoulder is not related to any incident of service, including the 1994 injury. As the record shows that the Veteran was diagnosed with degenerative joint disease of the left shoulder in 1992 prior to the 1994 period of active duty in question, the Board also finds that the preexisting degenerative joint disease of the left shoulder was not aggravated by the 1994 in-service injury or any other incident of service. As noted above, the service treatment records fail to show an increase in disability. Moreover, the VA examiner opined that the one-time episode of left shoulder problems in service did not contribute to the Veteran's degenerative joint disease. The Board observes that the above opinion essentially rules out any aggravation of the preexisting degenerative joint disease of the left shoulder.
In conclusion, the Board finds that degenerative joint disease of the left shoulder was not incurred in or aggravated by active service.
Low Back Disability
The Veteran asserts that he injured the low back during active duty in 1976 when he was thrown to the ground and taken to the emergency room. His service treatment records contain an emergency room report showing that he fell and injured the back. X-rays were negative and the diagnosis was of a bruise. A March 1976 record shows complaints of a painful right gluteus, findings of no bony abnormalities, and a diagnosis of a muscle bruise. There are no further complaints of low back problems during the rest of his active service or for many years thereafter.
Given the above, although the Veteran sustained an injury to the low back during active duty, he did not develop a chronic low back disorder as there are no further complaints for many years thereafter. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. The first sign of low back problems since the above injury appears in an August 2003 VA treatment note, which reflects a history of backaches two to three times per year. The Veteran did not relate the backaches to service.
An August 2004 private medical record shows a history of back problems for the past 20 to 30 years. The Veteran reported a history of injuring the back in 1975 when he was thrown to the floor and since then working in supplies doing a tremendous amount of lifting, carrying, pushing, and pulling, and driving a supply truck with poor suspension and resultant vibration. The physician provided a diagnosis of degenerative disc disease and stated that it is likely from the type of work the Veteran has done through his life.
A May 2005 VA examination report reflects a history of injuring the back in service when he was thrown onto a cement floor in Germany and having recurrent episodes of low back pain since that time. The Veteran stated that he had been told that he had no fracture. After examining the Veteran, the examiner provided a diagnosis of marked degenerative change, and degenerative disc disease, L5-S1, T10-12 with diffuse spurring.
As the record indicated that the Veteran sustained an injury to the low back during active duty and a private physician indicated that the low back disability may be related to service, the Board requested a VA medical opinion from the above VA examiner.
In an April 2010 opinion, a VA examiner noted a review of the Veteran's claims file, including the 1976 service treatment records. The examiner stated that the Veteran's degenerative disc disease of the lumbar spine did not have its onset during active duty or within one year thereafter. The examiner noted the one in-service episode of back pain diagnosed as a bruise in April 1976 and observed that the Veteran was returned to full duty and had negative subsequent physical examinations. The examiner indicated that the Veteran was able to later serve in the National Guard and subsequent physical examinations show no complaints of low back problems. The examiner stated that, based on her clinical experience and review of the claims file, the one-time complaint of low back problems in service could not have contributed to the current degenerative changes. The examiner reiterated that the Veteran went on to serve years in the National Guard. The examiner concluded that there is insufficient evidence to show a clear nexus.
Given the above, the Board finds that the weight of the probative evidence shows that the Veteran's low back disability is not related to any incident of active service.
The Board notes the favorable opinion from the private physician. However, as phrased, the opinion is too speculative. Thus, that opinion is of limited probative value in determining whether the Veteran's current low back disability is in fact related to active service. See Hayes, 5 Vet. App. at 69-70.
On the contrary, the opinion of VA's examiner is definitive and based on a review of the claims file, and thus the Veteran's complete medical history, including the 1976 injury. Thus, her opinion is of great probative value. See Hayes, 5 Vet. App. at 69-70. Therefore, the Board finds that the Veteran's low back disability is not related to the 1976 in-service injury or any other incident of service.
In conclusion, the Board finds that a low back disability was not incurred in or aggravated by active service.
Peripheral Neuropathy of the Left Upper Extremity
The Veteran asserts that he has peripheral neuropathy of the left upper extremity as secondary to the degenerative changes of the left shoulder.
Initially, as the claim for service connection for degenerative changes of the left shoulder has been denied in this decision, service connection as secondary to that disability is not warranted. Moreover, the evidence shows that the Veteran's symptoms are associated with a nonservice-connected disability. As noted above, in March 1992, he complained of occasional numbness of the left forearm and twitching of the muscles in the left upper arm, was diagnosed with rule out cervical radiculopathy, and was referred for nerve conduction studies. The May 1992 report of nerve conduction studies provides diagnoses of left carpal tunnel syndrome and left C5-6 radiculopathy. Service connection for carpal tunnel syndrome and a cervical spine disorder was denied by the RO in the July 2005 rating decision and those denials were confirmed by the Board in the September 2009 decision. Thus, service connection as secondary to those disabilities is also not warranted.
To the extent that the radiculopathy of the left upper extremity diagnosed prior to the period of active duty in question alone can be service-connected without the underlying cervical spine disability, with just the one time in-service complaint of intermittent numbness in the left shoulder in March 1994, there is no indication of an increase in disability during service. As such, the evidence fails to show that the radiculopathy was aggravated during active duty. This finding is supported by the fact that there are no further complaints for many years thereafter.
In conclusion, the Board finds that peripheral neuropathy of the left upper extremity, diagnosed as cervical radiculopathy and carpal tunnel syndrome, was not incurred in or aggravated by active service and is not proximately due to, the result of, or aggravated by a service-connected disability.
All Disabilities
The Board notes the Veteran's assertions that he has had problems with his left knee, left shoulder, and low back since service. The Board acknowledges that he is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
To the extent that the Veteran is claiming to have experienced continuous pain in the left knee, left shoulder, and low back since active service, he is not found to be credible. Again, service treatment records subsequent to the one-time in-service injuries do not reflect any ongoing problems. There is no medical evidence of left knee, left shoulder, and low back disabilities for many years thereafter. Lastly, if he had experienced left knee, left shoulder, and low back problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim much sooner than in October 2004. For all these reasons, the Board finds that the statements alleging or implying continuity of symptoms are not credible here. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the weight of the probative medical evidence of record does not relate the left knee, left shoulder, and low back disabilities to active service.
The Board notes the Veteran's assertion that he has peripheral neuropathy of the left upper extremity due to a left shoulder disability. The Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, he is not competent to address etiology of his neurological symptoms. As discussed above, the medical evidence shows that the neurological symptoms associated with his left shoulder are related to a cervical spine disability or carpal tunnel syndrome, neither of which is service-connected.
In conclusion, service connection for a left knee disability, degenerative changes of the left shoulder, a low back disability, and peripheral neuropathy of the left upper extremity, to include as secondary to degenerative changes of the left shoulder, is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49.
ORDER
Service connection for degenerative changes, left knee, is denied.
Service connection for degenerative changes, left shoulder, is denied.
Service connection for degenerative disc disease, L5-S1, T10-12 with diffuse spurring, is denied.
Service connection for peripheral neuropathy of the left upper extremity, to include as secondary to degenerative changes, left shoulder, is denied.
REMAND
As indicated in the introduction, VACOLS shows that the Veteran filed a timely notice of disagreement with the July 2012 rating decision that denied the application to reopen a previously denied claim for service connection for a chronic acquired psychiatric disorder; denied service connection for sciatica of the left lower extremity, sciatica of the right lower extremity, and hepatitis C; denied compensable evaluations for umbilical hernia and left little finger disability; and denied a TDIU. VACOLS also shows that he requested a hearing before a DRO. Thus, after providing the Veteran with an opportunity to present testimony before a DRO, the RO must issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999) (where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board).
With respect to the Veteran's claim of entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities, the Board finds that the resolution of the Veteran's outstanding service connection and increased rating claims noted above may impact the claim. Under these circumstances, a decision by the Board on the claim would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
Accordingly, the case is REMANDED for the following actions:
1. Send the Veteran a statement of the case on the issues of whether new and material evidence has been received to reopen a previously denied claim for service connection for a chronic acquired psychiatric disorder, to include anxiety and depression, to include as secondary to the service-connected umbilical hernia; service connection for sciatica of the left lower extremity, to include as secondary to a low back disability; service connection for sciatica of the right lower extremity, to include as secondary to a low back disability; service connection for hepatitis C; a compensable evaluation for umbilical hernia; a compensable evaluation for flexion contracture with degenerative changes, left little finger (left little finger disability); and a TDIU. He should be advised that a timely substantive appeal is necessary to perfect the appeal to the Board. If the appeal is perfected, then the issue(s) should be returned to the Board for further appellate consideration, if otherwise in order.
2. Thereafter, readjudicate the claim for a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case that contains notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response thereto.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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SUSAN J. JANEC
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs